Should Trump Answer Mueller’s Questions?

micah (Micah Cohen, politics editor): For your consideration today: Should President Trump agree to be interviewed by special counsel Robert Mueller?

Obviously, we’re not lawyers or legal analysts, so we mostly want to focus on the politics of that question. But let’s set the stage first: This question is in the news because The New York Times’ Michael Schmidt broke a story this week that included dozens of questions Mueller reportedly has for Trump. What did you all make of those questions? And where did those come from exactly?

perry (Perry Bacon Jr., senior writer): Here’s what the story said about where the questions came from: the questions were “read by the special counsel investigators to the president’s lawyers, who compiled them into a list. That document was provided to The Times by a person outside Mr. Trump’s legal team.”

clare.malone (Clare Malone, senior political writer): It seems like someone from Trump’s universe — maybe formerly on his legal team? — made those questions available.

natesilver (Nate Silver, editor in chief): I thought the questions were … about what you’d expect the questions to be. There was one question that implied that Manafort was a backchannel to Russia, which went a step or two beyond what was known about the investigation publicly. But in general, the questions didn’t move my priors all that much, which is not to say it wasn’t an awesome scoop for The New York Times.

clare.malone: It was interesting that Mueller had questions about the potential firing of … Mueller.

perry: I feel like the leak of the questions is as interesting as the actual questions, which, as you said, were generally not that surprising.

micah: So, yeah, what was interesting about the leak?

perry: For one, it was odd to see Trump attacking the leak, which, as the Times story implies, seemed to come from someone on his side, not Mueller’s.

natesilver: What if someone on Trump’s side leaked to make it look like Mueller leaked?

The Times was more explicit about its sourcing than it usually is, which I thought was interesting and maybe kind of a tell.

clare.malone: That was my read. It’s a bit of a ham-handed media strategy, though — leak something so you can point to Mueller and say he leaked it.

clare.malone: And that kind of leak talk has danced around the edges of Trump’s bigger argument that the special counsel is B.S., the investigation is tainted and should end.

perry: Another point: If Trump’s main lawyers just leaked it, I think the Washington Post/AP/CNN and other outlets would have matched the story by now. But few have. That makes me think this was not a typical leak — it was more strategic.

micah: Also, I was struck by how much the questions mirrored public reporting — so either the media has done a really good job figuring out Mueller’s lines of inquiry, or Mueller’s team gave Trump’s people only the questions they would already assume he was going to get (which would seem like a smart strategy).

clare.malone: Yeah, I would save some questions if I were Mueller! The juicier questions, probably.

I’m no lawyer, but I did think it was odd that the special counsel’s team was negotiating terms like that with the White House.

perry: Agreed. I’m somewhat skeptical that this is Mueller’s actual list of questions, since these questions are somewhat obvious.

natesilver: I was also a bit surprised by how open-ended the questions were. It was a lot more “Talk about this …,” “Talk about that …,” and less, “Where were you on the night of June 15?”

clare.malone: Right. Well, I’m sure they were just giving general topic areas, right?

Lawyers often ask pretty precise questions and follow-ups.

micah: To use a poll analogy, we just don’t know what kind of sample this list of questions is. If we have a national poll of likely voters, we know a lot about the sample of people that the pollsters talked to, but we also know a lot about the full population that we’re trying to to take a cross-section of. In this case, we don’t know what the larger population is (the full list of questions Mueller wants to ask), so we have no way of guessing how representative this sample is.

natesilver: I mean, as Clare said, there’s also a thing where (as a journalist, I can’t speak to this as a prosecutor) you’re preparing for a potentially hostile interview and you agree to go over the subject areas with the interviewee ahead of time … but not the specific questions.

So maybe this was that? It’s not totally clear.

perry: I know we ducked the media discussion around the White House Correspondents’ Association dinner, but I feel like there is a media discussion that is relevant here too. If someone close to Trump leaks questions, that then Trump attacks Mueller for that leak … it’s kind of an odd thing. The questions are news. But in some ways, this is part of the public battle between Mueller/Deputy Attorney General Rod Rosenstein and Team Trump/House Republicans about whether the investigation is fair and should continue.

micah: Perry, yeah, that battle seems like the right larger frame here.

Also, Nate … no shoehorning WHCD takes in!

Don’t even try it!

natesilver: Can we think through something? What purpose, other than maybe trying to make it looked like Mueller leaked, would the leak have served for the leaker? (Not a rhetorical question.)

micah: Trying to convince the party (Congressional Republicans, fundraisers, etc.) that there isn’t some new shoe waiting to drop? As in, an unknown unknown?

I’m reaching maybe.

perry: First, to clue in other potential witnesses (on the Trump side) to what Mueller might be asking Trump. And second, to show congressional Republicans how direct and dangerous Mueller’s questions are, so they can keep trying to block/impede the probe.

I’m just guessing, but those seem like the obvious ones.

micah: Also, trying to make it look like a Mueller leak is probably a good enough goal by itself from the White House’s POV, right? Especially considering that there wasn’t much new in the questions?

clare.malone: It’s interesting that Mueller brings in a couple of questions about Trump’s talking to media figures — it sounds like he wants Trump to account for his behavior in public that might allude to or affect events that were happening behind the scenes.

For example, from the Times story:

“What was the purpose of your April 11, 2017, statement to Maria Bartiromo?”

“What did you mean in your interview with Lester Holt about Mr. Comey and Russia?”

micah: Yeah, those are weird questions, Clare.

natesilver: One could certainly argue that the fact that there wasn’t a lot of news in the questions (above and beyond what’s been revealed already) is a good sign for Trump.

micah: Maybe, but we don’t know because we don’t know whether these are all the questions or some of the questions or if they’re more topics than questions.

perry: I think the fact that so many of these questions on this list came from things that were in the public domain suggest that these are not the real questions.

micah: Yeah, that was my thinking, Perry.

natesilver: Well … maybe. Or maybe there isn’t any “there” there.

clare.malone: God, where is a lawyer when you need one.

micah: OK, let’s go to our main question now: If you were Trump, would you agree to the interview?

But it’s Trump so, if I’m Trump, I agree to do the interview anyhow, thinking that it makes me look more open and cooperative.

micah: Nate’s a no. Clare, you’re a no too?

clare.malone: Yeah.

perry: I assume the strategy should be go to the interview and invoke executive privilege and other stuff constantly. Don’t actually say anything controversial or interesting and claim legal reasons why you don’t answer the questions. Declining the interview suggests you have something to hide, but I assume giving direct answers has its own problems.

natesilver: It’s like — if there isn’t any “there” there, then Trump (who is definitely vulnerable on obstruction charges even if there isn’t any “collusion”) can probably only get himself into trouble by talking. Any if there is a “there” there, he can also only get himself into trouble by talking.

clare.malone: So Perry’s a yes!

perry: Try to limit the questions, etc.

natesilver: But Trump’s not good at that.

clare.malone: Right, if this were another person under questioning, you might have more confidence that they would stick to the script of demurring to speak on certain topics. But it’s Trump, and if you’re his lawyers, you think he might well take the prosecutorial bait.

natesilver: Also, he’s already publicly picked a battle with Mueller — so it’s not like it’s inconsistent with his previous strategy. It’d be another thing if Trump’s public stance had been, “We’re cooperating with the investigation as much as possible.”

perry: Do we actually know whether Trump is bad in depositions? We only think he says crazy stuff because he says crazy stuff in situations where he is not under any legal jeopardy. He had done lots of sketchy stuff for years without being indicted, so I assume he is more careful in actual legal matters than he seems when he talks at say, press conferences that have no real consequences.

“The Donald Trump who emerges from these depositions is the same but different from the one familiar to Americans today. He is just as apt to bluster and braggadocio, and sometimes peevish. But within the confines of conference rooms and offices, he is calmer, more restrained, and more deliberate than his public persona, and with the tether of his oath holding him back, often acknowledges when he is wrong or has misrepresented things in the past.”

perry: Interesting. I wonder if Trump can find a way to do this interview that blocks certain questions. I assume his attorney(s) will be in the room.

And the depositions that The Atlantic is describing happened before he had the power of being the president, which I think would limit even a person like Mueller in how he takes on Trump.

micah: Let me ask this: What would the political fallout be (if any) from Trump refusing to be interviewed?

natesilver: I don’t think it would change a lot of minds. Again, Trump is already saying that the Mueller investigation is a WITCH HUNT. It’s not like he’s trying to be cooperative with it.

“Three-quarters overall (75%) say the President should agree to testify under oath for the probe, if he is asked to do so, similar to the 78% who felt that way in January. … The partisan gap is a bit smaller on this question, with majorities across party lines saying they think Trump ought to agree to testify if asked (92% of Democrats, 76% of independents and 54% of Republicans say he should).”

perry: Once Trump announced that he wasn’t testifying and gave his rationale for why, I think that 19 percent would get closer to 40.

Democrats on the Hill would condemn him for not testifying, Republicans on the Hill would say “the investigation has gone on too long,” “who would submit themselves to such a wide range of questions,” etc. All of the attacking the investigation stuff from Devin Nunes, Chuck Grassley, the House Freedom Caucus and others has set Trump up to duck this interview and claim it is not because he has something to hide.

micah: Yeah, that seems right, Perry.

IDK, though, I feel like there’d be some cost!

natesilver: I continue to think (even though it will seem self-serving as an elections-focused site) that the midterms are pretty important context here.

The extent of the public backlash against Trump isn’t totally clear right now, and it won’t be until people vote in November.

If Trump looks like he’s having a catastrophic effect on Republican electoral prospects, a lot of things will change.

natesilver: From the special elections, it does. But his approval ratings aren’t that bad. A lot of people have been in the low 40s at this point in their term and been re-elected.

perry: I guess I don’t know if the “will he testify” question, in terms of the legal process, extends till November. I assume some parts of the investigation have to end before then.

clare.malone: Hm.

I guess we haven’t talked in a long time about where we stand on the Mueller timeline.

Is he nearing the end? Is he in the middle?

Given that he has questions for the president, it seems the former, but who knows?

natesilver: Doesn’t everyone sort of have an incentive to slow-walk this until after the midterms?

micah: Oh man … I think we just don’t know?

perry: Not Trump. Every part of this investigation gets more out of his control if the House is controlled by Democrats.

clare.malone: Yeah, Nate, what’s Trump’s incentive to slow-walk?

Just delay even a bad outcome till later?

micah: Doesn’t he want it over now?

natesilver: Well, maybe not Trump. But Mueller and Congressional Democrats and Congressional Republicans all probably do.

perry: If the Democrats win the House, Michael Avenatti (Stormy Daniels’s lawyer) will still be on CNN constantly, but they will be airing his comments via various Democratic-led hearings from the Hill.

We’ve been having this “Will he testify?” discussion for months now. Isn’t the actual result of this already known? (He is not testifying.)

natesilver: Maybe that’s Trump’s incentive, by the way? Democrats will overplay their hand?

If they win the House, for instance, they’d face a potentially difficult decision about whether to begin impeachment proceedings.

clare.malone: They’re going to do that. Someone is going to do that.

natesilver: Mueller’s investigation could seem like more of a “witch hunt” if Trump confuses it in the public’s mind with Democratic-led investigations in the House.

micah: I guess there’s a difference between not speaking to Mueller and refusing to speak to Mueller — passive vs. active. Trump is still in the passive category.

perry: I actually think, and this is a political issue, that the dynamics of impeachment are shifting. Trump is saying directly that 2018 is about impeachment, which is forcing Nancy Pelosi and Democrats to say even more, “No, it’s not.”

clare.malone: Yeah, but Perry, I think that idea will be raised by Republicans, sure, but if the Democrats win the House, they’re going to feel a lot of pressure from their base. They might play it down during the midterms, but I think they’ll still do it if they win.

Can Trump legally refuse to speak to Mueller, Micah?

micah: I think he can, Clare? At least, it’s an open question legally.

” … constitutional law experts told TPM that if the White House does choose defiance and Mueller responds with a subpoena, it would likely set up a high-stakes legal showdown—one in which the special counsel might have the upper hand.”

natesilver: Maybe there’s a sweet spot for Trump where Democrats win the House, but not by much, and they don’t win the Senate. So Trump avoids a massive Democratic wave, which has all sorts of negative implications for him, but Pelosi (or her successor) nonetheless has to wrestle with some of the challenges that come with being in the majority.

perry: My understanding is Mueller right now is asking Trump to speak voluntarily. Mueller could get a subpoena, although getting a subpoena for the sitting president is not simple. Then, Trump can invoke the Fifth Amendment (against self-incrimination) and not talk. Or he could make some claim of presidential privilege.

There are lots of routes for Trump to not talk to Mueller.

micah: If you had to bet, do you think he talks or no?

natesilver: I would bet “no.”

clare.malone: His legal instinct, historically, is to fight things. Which would fit with the “just say no” strategy.

So Trump’s attitude might be — there’s no point in talking to the guy if he doesn’t have the goods.

micah: I guess I just think it’s remarkable that we all think there would be very little cost — if any — to Trump not talking.

If that’s true, something is deeply broken about something.

clare.malone: Such is a highly partisan media environment!

micah: 😦

natesilver: I didn’t know the poll numbers were quite so lopsided on that question. So I guess I’d put myself more in the “not sure” category.

perry: Based on the amount we know, it’s hard to imagine Trump somehow exonerating himself in this testimony. I don’t know if it rises to obstruction of justice, but I don’t feel like Trump will be able to say credibly, “No, in fact, I fired Comey because I have a vision of an FBI that does X and Y, and Comey only did Z.” So I’m not sure Trump has much to gain from testifying, beyond appealing to a public that already opposes him.

natesilver: I don’t think it’s one of the three most important questions right now. The three most important questions are (in no particular order):

Does Mueller have a “smoking gun” on collusion that hasn’t been made public yet?

Does Trump fire/pardon more people?

How do the midterms go?

One could argue that Trump will be in trouble if any two of these three questions are resolved poorly for him.

micah: OK, so to wrap … Trump knows the answer to #1 presumably; so, when Trump decides whether to testify, can we read into that one way or the other?

Same with #2. That is, does whether Trump pardons or fires people tell you anything about a smoking gun?

natesilver: There are also a lot of scenarios where Trump is worried about criminal conduct unrelated to colluding with Russia during the campaign.

clare.malone: I don’t think Trump believes he colluded.

Here’s what I mean: I think Trump genuinely believes he didn’t collude and that this is a witch hunt, which is why he would say he wants to testify and would pardon people he thinks are being unfairly punished.

But that doesn’t mean that the campaign didn’t collude. Or that Trump didn’t obstruct justice.

But all his actions — particularly potential pardons — seem predicated on his belief that he did no wrong.

Nate Silver is the founder and editor in chief of FiveThirtyEight. @natesilver538

Clare Malone is a senior political writer for FiveThirtyEight. @ClareMalone